Bangladesh war crimes tribunal: further bias is no answer

The role of the media in Bangladesh will not be improved by inaccurate and partisan critiques of the ICT

The article
by Aisha Rahman, on Bangladesh’s war crimes tribunal involving offences
alleged to have been committed during the country’s 1971 war of Independence,
does highlight some legitimate concerns about the process of justice taking place
in the country’s capital and how the media report it.

However, in the main it is a highly
one-sided and inaccurate piece, failing to provide any proper reflection on the
context in which the tribunal is taking place, or its operation.

Background
to the tribunal

41 years ago, in March 1971 a war started
in which the might of Pakistan’s military fought to stop the Awami League, a
party representing the Bengali population in the eastern wing of the country
which had just obtained a majority in the 1970 election, from taking power.

To say simply, as Rahman does, that ‘crimes
were committed by both sides during the war,’ fails to reflect the contemporary
reportage at the time, as well as subsequent respected histories.

Whilst it is true that freedom fighters, or
at least those who supported them, were involved in some massacres particularly
against the Bihari community (seen as opposing Bengali independence), it is
also clear that it was the Pakistani military with the assistance of their
local Bengali collaborators who were responsible for by far the majority of civilian
deaths.

And though the Bangladesh government and
indeed the tribunal itself almost
certainly over estimate by a factor of about ten the numbers of those
killed by the Pakistan military, the number of deaths does not need to be 3
million (the government figure) in order for there to be an unarguable case for
accountability for these crimes.

Indeed the Bangladesh government is correct
to say that it has an international obligation to hold trials relating to the
commission of international crimes.

Moreover, this tribunal did not come out of
nowhere. It
is the culmination of strong national civil society protests for 20 years,
which rarely received any international support, and which forced the current
Awami League government into a position where it had little choice but to hold
the tribunals. (Though of course the tribunals have now proved to be very
politically convenient for it.)

Opposition
on trial?

Rahman is correct to point out that all of
the 8 men currently accused by the International Crimes Tribunal are, or were,
leaders of one or other of the country’s two main opposition parties - two from
the main Bangladesh Nationalist Party (BNP) and six from the smaller Islamic
party, the Jamaat-e-Islami (JI).

However, to say that they were ‘targeted’
gives the distinct impression that they have been accused simply because they
were opposition leaders. This is not true.

The support that the Jamaat-e-Islami gave
to the Pakistan military in 1971 is well documented, not least at the time in
the party’s own newspaper, the Daily Sangram. The paper also set out how the
party established the Al Badr, a militia that supported the Pakistan military,
from amongst its student wing.

To describe, for example, Gholam Azam, the
leader of this party in 1971, as simply a ‘regional leader of a small political
party opposing the secession of East Pakistan’ may well be a line that the
defence lawyers will use, but it is no objective description of the role this
man played in 1971.

It should perhaps be no surprise that the
same men who supported the Pakistan military in 1971 continue to be members of
opposition parties.

So, in this context, the attempted
prosecution of these men is eminently reasonable.

Sufficiency
of evidence

Of course, it has also to be kept in mind
that finding sufficient evidence to prove a case against these men forty years
on is by no means a forgone conclusion; exhortations made by Jamaat leaders,
for example, to kill the ‘Indian agents,’ ‘miscreants’ and the like are not in
themselves crimes against humanity as they would have to be shown at the very
least to be directed against civilians rather than armed Bengali freedom
fighters.

Credible eye-witnesses of direct offences
allegedly committed by these men have also not been easy for the prosecution to
come by, and Rahman correctly points to some weaknesses in the evidence so far.

And of course, it may simply be found
through the rigour of a trial, that the conventional history told about these
men is not true.

It is also of course quite ridiculous for
Azam to have been accused of, “responsibility
for allatrocities committed across the
country from March 25 to December 16, 1971” as the prosecution are alleging.

In their attempts to prove their case, the
prosecution have appeared willing to turn history on its head, depicting the
Pakistani military as mere collaborators of the Jamaat-e-Islami, who have
instead become the primary offenders in the war.

Standards
of the tribunal

So onto the tribunal itself.

Rahman is right to point out that Article
47A of the constitution, does suspend ‘constitutional rights … for the
accused’. However, she fails to point out that most of these rights have been
re-incorporated into the legislation and rules of procedure under which the
tribunal is proceeding.

Perhaps the only significant ‘constitutional’
right that the accused currently lack is to be able to appeal any orders made
by the tribunal, other than a verdict of conviction.

A significant question, of course relates
to whether the tribunal should follow ‘international standards’ – when no other
criminal court in Bangladesh follows them. It is a difficult question to
answer, which Rahman’s article gets nowhere near to considering, whether war
crimes defendents should be the only accused in Bangladesh who deserve
international standards.

It is true that a UN working group has
criticised the Bangladesh government for its policy of ‘arbitrary’
pre-charge detention – a conclusion which could probably be made about hundreds
of other people languishing in pre-trial remand in Bangladesh. But Rahman is
wrong to suggest that one of the tribunal judges ‘has [himself] provided
evidence’ to the tribunal.

This refers to the fact that the chairman
of the tribunal was part of the secretariat of an organisation which nearly
twenty years ago was involved in the investigation of a number of those
currently detained by the tribunal. However, there
was no evidence that the chairman was in any way personally involved in
undertaking any inquiries of any kind.

Of course, it is a rather different
question whether it was wise for him to remain involved in the tribunal since
his membership of the secretariat, however inactive, arguably does create an
appearance of bias.

Again it is true, as Rahman mentions, that
the Bangladesh government has unjustifiably prevented their international
lawyers from coming to Bangladesh and assisting them in the court room. However
the defence do have a very proficient and capable defence team – far better
than the prosecution – and have every opportunity to cross examine witnesses
and present their own case.

Media
bias

Rahman’s article focuses on how much of
Bangladesh’s media has submitted to the government cause, and the extent of its
cheer leading for the accused convictions. And here, she is no doubt on
stronger ground.

Even though the substantive matters of
guilt and innocence are currently before for the tribunal, some of the most
influential printed media in Bangladesh continue to talk about the men as
though they were guilty and their convictions a foregone conclusion.

It is of course hardly surprising that this
happens, when the prime minister Sheikh Hasina herself gave a speech in September 2011
to the UN General Assembly which said of the accused that ‘Their eventual
punishment will strengthen our democracy, demonstrating that the state is
capable of just retribution.’

Moreover, on the other side of the coin,
the possibilities of journalists here in Bangladesh being able to write
critical commentary about the tribunal are decreasing. The attacks on Al
Jazeera and myself are tantamount to that.

Yet, I simply don't see how Rahman’s
inaccurate and partisan article provides any better understanding of the
background and legitimacy of the Bangladesh tribunals, than the biases of the
media over here.

There is a world of difference between journalism
raising concerns about aspects of the tribunal process and the kind of polemic
written by Rahman that damns the tribunal ab
initio and finds no legitimate reason to hold war crimes trials involving a
war that resulted in the death of hundreds of thousands of people.

And as for me – a
journalist working for a national newspaper in Bangladesh, who as Rahman has in
fact noted was found in contempt of the tribunal for what was, in my view at
least, a
good piece of critical analysis – I write as a person who certainly cannot
be described as an uncritical commentator on the tribunal.

This article is published under a Creative Commons Attribution-NonCommercial 3.0 licence.
If you have any queries about republishing please contact us.
Please check individual images for licensing details.

Security for the future: in search of a new vision

What does ‘security’ mean to you? The Ammerdown Invitation seeks your participation in a new civic conversation about national security in the UK and beyond. Its authors offer an analysis of the shortcomings of current approaches and propose a different vision of the future. Please use the invitation summary document for seminars, workshops and public meetings, and share the responses and insights that emerge.

Recent comments

openDemocracy is an independent, non-profit global media outlet, covering world affairs, ideas and culture, which seeks to challenge power and encourage democratic debate across the world. We publish high-quality investigative reporting and analysis; we train and mentor journalists and wider civil society; we publish in Russian, Arabic, Spanish and Portuguese and English.